This is a translation (with minor adaptations to make it more interesting for this Forum) of a piece I co-authored with Gabriel Wedy and Luciane Moessa. It has more legalese than usual, sorry.
Thanks to Juana for encouraging me about this.
More than climate litigation, I wrote this to promote the notion of rights for future generations. I think most intergenerational justice scholars currently disregard this idea - which is a problem, because a lot of current policy-making is based on rights (as I've previously argued). I think progress has been made by the Legal Priorities Project, by Longtermism and the Law and GPI's Longtermist Political Philosophy Agenda - but there seems to be a lot of ground to cover to fill the gap with deontologists. I talk more about this in the post-scriptum (which is my sole responsibility, as my co-authors are not EAs).
Global warming doesn't bring an increase in climate events only, but also new insights into theories of climate justice. On February 20, eighteen member-states (so-called “champion nations”) officially uploaded an ultimate version of the Vanuatu Initiative to the United Nations e- deleGATE system. This is a draft Resolution to be presented to the next General Assembly, scheduled for late March or early April 2023, in order to submit to the International Court of Justice a formal request for an advisory opinion on the obligations of State-members regarding climate change. The text innovates in requesting a pronouncement on the legal consequences, for large emitters, with respect to the adverse effects of climate change caused to States that will be particularly affected and to peoples and individuals of present and future generations. There are informal translations available in French, Spanish and Portuguese.
There are good chances that the draft will be approved. Both the UN Commission on Human Rights (Resolution 50/9) and the General Assembly (Resolution 300) have recently declared that climate change affects human rights, and the Secretary-General Antonio Guterres emphasizes those of future generations. The Resolution will remain open for co-sponsorship to climate leading States until its adoption.
We hope, for instance, that countries such as Brazil, a candidate to host the COP-30 in 2025, will take this opportunity to signal their position. As we know, but it is worth emphasizing, climate litigation is already a fact in this country[1]. In 2022, the Federal Supreme Court (STF), in the case ADPF 708, regarded the Paris Agreement as a human rights treaty, able to override federal statutory legislation. As for future generations, the Brazilian Constitution (in art. 225) recognizes explicit duties towards them. In addition, there are lawsuits for environmental liability discussing the inclusion of a “carbon price” in the compensation due (e.g., the case n. 1005885-78.2021.4.01.3200) – a subject recently addressed in a public consultation by the National Council of Justice (CNJ). It turns out that one of the parameters of this shadow price, according to of the social cost of carbon approach (as described in the Guidelines for Cost-Benefit Analysis[2] published by the Secretariat of Infrastructure Projects of the Ministry of Economy) is precisely the estimate of expected damages to occur in the future; this reasoning implies an implicit acknowledgment that such harm can be compensated today .
To justify this, it is not necessary to admit that people who do not yet exist in fact have subjective rights today – something that would lack explicit reference in the dominant legal practice and which is seen with doubt or opposed by theorists such as F. Coomans , A. Gosseries , A. S. Campos and C. Botelho. Thus, e.g., when the UNESCO Declaration on the Responsibilities of Present Generations towards Future Generations mentions that we have an obligation to preserve humanity, this does not imply that such an obligation is based on rights. If we discovered that, for some reason, humanity will not exist in 2223, we would not say that on that date there would be violated rights – because nobody would exist; but we could say that, for those of us who exist today and who want humanity to continue to exist, extinction would be terrible – which would justify, for instance, adopting measures to avoid it.
Consequently, when we talk about climate change and mention the rights of those who will exist in 2100, we are in fact referring rights and interests of people who already exist today in relation to individuals who are expected to come into existence in 2100 – ie., our desire and necessity that those who will live in 2100 will have a good life. After all, they will have relationships with us, directly or not – because, as we get older, they will become responsible for our public debt, our social security, our medical care, etc. Thus, the protection of those who will come into existence would be linked to the protection of the rights and interests of people alive now. Along these lines, when stipulating a value for the emission of greenhouse gases in an environmental torts case, we do so to maintain consistency with previously assumed commitments – such as those in the Paris Agreement. This is consistent with the approach called target-consistent pricing (see Stern et al., 2022 ) for carbon prices: by emitting greenhouse gases and causing environmental damage, the polluter misuses our carbon budget, so creating a cost for the rest of society, which will have to further reduce its emissions – and it is such cost that the compensation must offset.
However, is it really so strange to talk about rights of future generations – just because they don't exist yet? Imagine that the parents of two children are suing the government because they developed a malformation as a result of a nuclear accident, or fell ill because of budget cuts in the health system, or were unable to attain an education because schools were closed; in these cases, we would say that the rights of those children were violated by a government action or omission. Now suppose that the youngest child had not yet been conceived[3] when this event took place; what difference does it make? Would we be willing to say that only the eldest one had a right violated?
According to this reasoning, the notion of an “obligation” is more primitive than that of a “right” – not the least because the action precedes the corresponding effects[4]; talking about rights allows us to refer people who suffer the action / omission - highlighting that the obligation exists to benefit them in the first place. After all, there are everyday cases of violations of obligations without violations of individual rights: e.g., while driving drunk on an empty road, I violate a duty of care by creating a risk to others; and, if the road is not empty, I assume a concrete risk of violating someone else’s rights. Thus, it can be said that there is something like a diffuse right to traffic safety, violated when I drive recklessly, and which, in the event of an accident, justifies an individual (concrete) right of the victim. Analogously, by emitting greenhouse gases, the polluter violates an obligation (a diffuse right to a healthy environment) and creates a risk of harm to others; and, as argued by the philosopher J. Broome, this implies an obligation of justice to offset these emissions and / or pay for the corresponding expected damages – for the benefit of those who will suffer them.
Perhaps our resistance to recognizing the rights of those who will exist, even in a distant future, stems less from pettiness than from the fact that our culture is not used to thinking rationally about the long-term: until a few decades ago, human societies had almost no ability to produce or estimate relevant effects on future generations. But this does not apply to us: we can infer, with reasonable confidence, that factors such as a carbon-based economy, or the latent conflict between nations able to use weapons of mass destruction, or the difficulty in preventing and containing epidemics – just to mention themes of the moment – constitute serious risks, created by past and present generations, which sooner or later will cause catastrophes[5]. They threaten the rights of existing and, even more likely, future individuals; and, if we mitigate such risks, we will benefit people in the present and, most of all, in the future – because we hope that many more will live.
They will likely be in a position to judge and criticize our failure to recognize their rights; they will not do so out of self-interest, as the living have little to gain by pointing out the faults of the dead. The reason why, e.g., we reproach our ancestors for slavery is not that doing so is convenient for us – after all, if the past had been different, other individuals would exist in our place; we do so because we recognize that, regarding this, our societies have learned from this mistake. This leads us to recognize principles that can be used to judge current events – such as the still existing and ill-fated discrimination, which makes the poor and the minorities more vulnerable[6]. Thus, we can say that those who preceded us committed injustices whose persistent effects even today cause damage to our societies; and those succeeding us will be able to say – perhaps with greater propriety – that we harmed them out of shortsightedness.
P.S.: Epistemic status: very tentative; maybe badly phrased – please, don’t take it at face value
I suspect there are two issues (or maybe more, or perhaps they can all be reduced to one big issue) causing a major divide between scholars working on intergenerational justice (what political philosophers are usually concerned with) and those working with intergenerational ethics (where I would put longtermist scholars in general). So far, I’d say GPI has don the most to fill this gap – btw, don’t miss the deadline (March 19) to apply for their 12th summer workshop, if you want to.
i. Some scholars don't seem to think about risk when they present such theories - a point many consequentialist raise against nonconsequentialism (e.g., Fried, 2020). I feel tempted to add that some scholars are seldom concerned with how their research apply to real-world issues at large, and are not very acquainted with subjects not explicitly mentioned in the literature of their expertise, no matter how relevant they are.
(If I may conjecture even more, I suspect that, because of internet and interconnectivity, there are two major “forces” at play among philosophers and social scientists here: on the one hand, it’s become easier to fill the gap between different literatures – so that any political philosopher curious enough will be able to know something about topics such as governance, decision theory, psychology, economics, etc.; on the other hand, because of the incentives to publish in the area, there are so many new papers coming all the time (and new papers commenting on the papers of the last semester – or rediscovering a new link between these and some ancient intellectual deity like Hume, Kant, Plato…) that researchers need to focus on what their colleagues and supervisors are doing and risk becoming sort of shortsighted.)
ii. Some scholars focus too much on peculiar Parfitian thought experiments (though it’s even worse when a scholar is not acquainted with The Repugnant Conclusion, Personal Identity and Ethics or The Nonidentity Problem) involving procreation - which I suspect are unnecessarily complex and perhaps raise intuitions that are completely irrelevant for discussions concerning institutions; but because of it, they end up ignoring simple straightforward examples as those we provided above. My point is, if non-existence, or the non-identity problem, implied no harm / rights violation (as some in the intergenerational justice literature claim, so concluding that people in the far future have no rights), then children could not, e.g., accuse the government of violating their rights because a nuclear accident caused them congenital malformations (something I believe few would accept). Routine examples like that would support a weak person-affecting theory, but I have struggled to find similar cases in the literature (though, I admit, I might be shortsighted myself… but they seem so straightforward that, unless I am making a huge mistake, we should be seeing them way more often than procreation cases).
[1] On this, see: WEDY, Gabriel. Litígios climáticos: de acordo com o direito brasileiro, norte-americano e alemão. 2ª ed. Belo Horizonte: Editora Fórum, 2023; WEDY, Gabriel; SARLET, Ingo; FENSTERSEIFFER, Tiago. Curso de Direito Climático Brasileiro. São Paulo: Gen Jurídico, 2023 (no prelo); AYALA, Patrick de Araújo. Direito das mudanças climáticas: normatividade e princípios para a justiça ecológica no direito nacional e internacional. Curitiba: CRV, 2022; GAIO, Alexandre(org.). A política nacional das mudanças climáticas. Belo Horizonte, Abrampa, 2021; BORGES; Caio; VASQUES, Pedro Henrique. STF e as mudanças climáticas: contribuições para o debate sobre o Fundo Clima (ADPF 708). Rio de Janeiro: Editora Telha, 2021; CUNHA, Kamila; BOTTER, Amália F; SETZER, Joana. (Org.). Litigância Climática - Novas fronteiras para o Direito Ambiental no Brasil. 1ed.São Paulo: Thomson Reuters, 2019.
[2] Regarding this subject, see: SUNSTEIN, Cass. The Cost-Benefit Analysis: the Future of Regulatory State. Chicago: American Bar Association, 2002.
[3] Translation’s note: just to be very clear, this does not imply a recognition of any particular relevance for fertilization itself.
[4] One of the possible sources of philosophical confusion concerns the ambiguity of the term "exist": in one sense, it denotes a property of an object, something like its "permanence" (so it is said that we do not exist until we are born, and that we cease to exist upon death). In another, timeless, sense, it is a “logical quantifier”, a property of a concept, denoting that some object satisfies a description, or that the extension of such concept is not empty (e.g., “An odd prime number exists"). Since the notions of right / obligation are, from the point of view of formal logic, relations between agents, it makes sense to apply them this logical notion of “exist”; we can speak, e.g., of a right of the parties of a particular type of contract or corporation according to a statute, even if no such contract is currently in effect – so that there are such right (i.e., the extension of the corresponding concept is not empty), even though no instance of it is in place. Thus, we can state that, according to the second meaning of “exist”, there are rights of future generations (i.e., some legal facts satisfy the conditions of the concept of right and apply to future generations), although the agents these rights apply to do not yet exist (according to the second meaning – i.e., they are not alive). In the literature on intergenerational justice, this conclusion can be associated with the position called “present obligations-future rights-future individuals”.
More directly, such a statement may be analyzed as something like "there exists (in the logical sense) an x such that x lives in 2223, and we have obligations towards x" - or something even stronger: for any x such that x lives in 2223, there are obligations of ours regarding x, and such obligations correspond to x rights. Suppose that the set of possible worlds in 200 years is W = {w0 , w1 , w2 , w3 ...} – where w0 represents an “empty” world, with no rights holders, and the rest correspond to each one of the possible worlds with a positive number of people. In that case, except for w0, there will be future rights holders; thus, we can say that there are no possible worlds where we do not have obligations to the individuals of 2223 - because for all possible worlds except w0, the extension of the concept “rights of individuals in 200 years” is not empty.
If a person says that: (A) there are no rights of future generations, because their holders do not yet exist, but agrees that (B) we have today obligations such that, if we do not comply with them, will imply a future violation of the rights of these individuals, when they come to exist and suffer the corresponding effects, and that because of this pair (obligation + effects), actions and legal measures can be justified today to either prevent these violations or mitigate their effects, then I have no reason to argue with such a person: not only we reach the same practical conclusions, but since we seem to be using the terms “exist” and “rights” in different senses, it is likely that there is no genuine disagreement – except regarding what we believe are the relevant / ordinary meaning of these terms.
[5] Regarding Disaster Law, for a comparative legal analysis, see: SUNSTEIN, Cass. Averting Catastrophe: Decision Theory for COVID-19, Climate Change, and Potential Disasters of All Kinds. New York: NYU Press, 2021; FITZPATRICK, Daniel; COMPTON, Caroline. Law, Property and Disasters. London: Routledge,2021. Entre outras, no direito brasileiro, consultar: WEDY, Gabriel. O princípio constitucional da precaução: como instrumento de tutela do meio ambiente e da saúde pública (de acordo com o direito das mudanças climáticas e o direito dos desastres). 3a. ed. revista, ampliada e atualizada. Belo Horizonte: Editora Fórum, 2020; DAMACENA, Fernanda Dalla Libera. Direito dos Desastres e Compensação Climática no Brasil. São Paulo: Lumen Juris, 2019; JÚNIOR, Paulo Bento Forte; NETO, Saraiva Pery(Org.). Estudos multidisciplinares sobre o direito dos desastres. Porto Alegre: Editora Livraria do Advogado, 2021.
[6] On this subject, see: WILLIAMS, Jeremy. Climate Change is Racist: Race, Privilege and the Struggle for Climate Justice. London: Icon Books, 2021; COX, Stan. The Path to a Livable Future: A New Politics to Fight Climate Change, Racism, and the Next Pandemic. San Francisco: City Light Publishers, 2021; TONEY, Heather McTeer. Before the Streetlights Come On: Black America’s Urgent Call for Climate Solutions. Minneapolis: Broadleaf Books, 2023; SINGER, Merryl. Climate Change and Social Inequality: The Health and Social Costs of Global Warming. London: Routledge Advances in Climate Change Research, 2018.